Employment Law Daily Management attorney group files motion to enjoin DOL ‘persuader rule’
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Tuesday, April 19, 2016

Management attorney group files motion to enjoin DOL ‘persuader rule’

An affiliation of law firms representing management in labor and employment matters moved for a temporary restraining order on Friday, April 15 against the Department of Labor and Secretary Thomas Perez to prevent implementation or enforcement of the “new interpretation” of the “persuader rule.” The Worklaw® Network requested an expedited hearing on its motion, given the fact that the new Interpretation is set to go into effect April 25. The new rule, published in the Federal Register on March 24, enables the federal government to require employers, attorneys, and consultants to disclose confidential information—including the nature of conversations, copies of representation agreements, the amounts of fees paid, and other details–about employment, labor, and HR-related legal matters, the group asserts. The final rule revises two public disclosure reporting forms: Form LM-10 (employer report) and the Form LM-20 (agreement and activities report). Generally, with some exceptions, these reports must be filed when an employer and a labor relations consultant make an arrangement or an agreement that the consultant will undertake efforts to persuade the employer’s workers to reject an organizing campaign or collective bargaining effort by a union. The rule requires disclosure of these items for advice provided after June 30, 2016. Anti-union speech. According to their motion for injunctive relief (and memorandum in support of their motion), implementation of the new rule would chill employer free speech, employee free choice, and effective attorney and consultant advice. In addition to eviscerating the attorney-client relationship, the rule violates the First Amendment’s protection of viewpoint- and content-based speech, writes the Network in its motion: “The Department has specifically targeted employer and consultant speech that contains an ‘anti-union’ viewpoint. The Department repeatedly indicates that activity must be reported if it is ‘anti-union’ or engaged in for the purpose of ‘union avoidance.’ In fact, the phrase ‘anti-union’ appears 58 times in the new rule, and the phrase ‘union avoidance’ appears 97 times. The Interpretation singles out a viewpoint disfavored by the Government. … Importantly, the Government does not require that lawyers report any other messages to employees they may help their clients develop, including lawyers that represent unions. It is only when the message is, in Department parlance, ‘anti-union’ that the reporting obligation is triggered. … As a viewpoint-based regulation of speech, the Interpretation must be set aside.” Content-based restriction. The motion further argues that “[e]ven if the Court were to disregard the viewpoint discrimination that permeates the Interpretation, the Interpretation would be subject to strict scrutiny as a content-based restriction on speech.” While the Department’s purported interest is “transparency” of the source of information given by employers to employees regarding a union organizing campaign, the so-called transparency only extends to information deemed “anti-union.” No harm in delay. According to Millicent Sanchez, president of the Worklaw® Network and a partner at Swerdlow Florence Sanchez Swerdlow & Wimmer, “Given that no harm will come to the Department if the Interpretation is enjoined, it is our hope that the Court will grant a temporary delay to allow sufficient time for a review of the merits of the case. The previous Interpretation has been in place for more than 50 years; a delay of a few weeks or months would be inconsequential.” Worklaw® Network’s motion, which was filed in the U.S. District Court for the District of Minnesota, requests that the court stay, set aside, or enjoin implementation of the Interpretation of the “advice exception” in Section 203(c) of the Labor Management Reporting and Disclosure Act. The motion comes on the heels of a lawsuit filed on March 31 by the attorney group against the DOL and the Secretary of Labor.

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